Ralph Lancaster Jr. was appointed by the U.S. Supreme Court to serve as a special master oversee the Florida v. Georgia water war trial now underway in Portland, Maine. The trial began Monday, and Lancaster hinted several times during its first week that he could pursue as a resolution to the case the revival of a three-state commission to regulate the water flowing in the Apalachicola-Chattahoochee-Flint river basin. Alabama would be the third member of the commission, as it was when a previous compact expired in 2003. John Ewing/Portland Press Herald staff photographer
Photo: John Ewing
Photo: John Ewing

Revived ‘compact’ could be court’s answer to Georgia-Florida water war

One day the games stopped. Negotiations among their bosses to create a three-state commission, or “compact,” to regulate the flow of the waters from North Georgia to the Gulf of Mexico had broken down.

But the push for a tri-state compact never really died. And Ralph Lancaster Jr., appointed by the U.S. Supreme Court to resolve the latest water war legal battle, resurrected talk of a compact three times this week during trial. Once, he asked a witness whether an earlier attempt to create a regional water board was “a good thing”.

“We had great hope for it,” said Ted Hoehn, a Florida biologist and erstwhile volleyball player. “Staff tried to work together, but in the end it came down to (Georgia) saying, ‘This is the way it’s going to be.’ They would not come to an agreement.”

Years of lawsuits ensued, culminating in Florida v. Georgia, currently underway in this coastal New England town overseen by the curmudgeonly Lancaster, who was tapped by the high court to, possibly, end 27 years of litigation and ill will.

States across the country that share rivers employ congressionally sanctioned compacts to govern the flow of water between upstream and downstream users. The Supreme Court has repeatedly approved the “equitable apportionment” of interstate rivers, a water-sharing agreement at the heart of Florida v. Georgia.

Florida’s latest lawsuit, filed in 2013, accuses Georgia of hogging water from the Chattahoochee and Flint rivers to the economic and ecological detriment of the downstream Apalachicola River basin. Florida seeks a reliable amount of water from Georgia as well as a cap on metro Atlanta’s and/or southwest Georgia’s consumption of water.

The trial could last until Christmas. The Supreme Court, if it agrees to accept Lancaster’s ruling, could vote by late 2017. The stakes are enormous for metro Atlanta, which could see its water-fueled growth curtailed. South Georgia farmers could lose billions of dollars in crops without irrigation.

A compact in place these past 15 years would’ve salved tri-state acrimony and saved taxpayers tens of millions of dollars in legal fees. It would’ve governed the apportionment of an increasingly precious resource, particularly during the bad droughts of 2006-08 and 2011-12.

Lancaster’s questioning last week as the Supreme Court’s appointed special master buoys compromise-minded Southerners who’ve grown tired of the water wars.

“I am pleased that he brought it up,” said Wilton Rooks, executive vice president of the Lake Lanier Association, who has long pushed for a tri-state commission to manage the region’s water. “We need to start with some agreements and then build on them. A traditional compact would be a starting point.”

The blame game

Florida blamed Georgia for the compact’s demise; Georgia blamed Florida. It wasn’t always this bad.

In 1991, Georgia and Alabama, later joined by Florida, got the ball rolling on an Apalachicola-Chattahoochee-Flint (ACF) Compact. Deadlines for deals were repeatedly missed. Extensions were readily granted. Negotiations, though, weren’t the only game in town.

The U.S. Army Corps of Engineers controls the Chattahoochee River with five reservoirs and dams. Georgia asked the corps for more water from Lake Lanier in 2000 to slake Atlanta’s growing thirst. The feds declined.

Three years later the corps, Georgia and hydroelectric companies cut a deal that gave metro Atlanta a whole lot more water from Lanier. Alabama and Florida cried foul and accused Georgia of secret deals that violated “the spirit of the (compact) negotiations.”

Alabama and Florida sued the corps. The compact died.

The dispute then, like now, boiled down to two things: how much water flows from Georgia into Florida; and should Georgia cap the amount of water it consumes.

“Georgia made it very clear to us on more than one occasion that the negotiations would have a greater chance of success if we didn’t publicly talk about caps or consumption,” David Struhs, then-secretary of Florida’s environmental agency, testified Tuesday. “But our negotiations were premised on caps. … Georgia never had any intention to limit its water consumption.”

He added, “From my point of view, they were operating in bad faith.”

George Sherk, an attorney who taught at Georgia State University in the mid-’90s and has written extensively on water compacts, agreed.

“Georgia was doing one thing in one meeting and something else in another,” said Sherk, who now teaches at the University of Saskatchewan. “From a litigation perspective, as I saw it, it was Atlanta’s needs uber alles. Florida and Alabama simply said, ‘We’re sick and tired of trying to deal with the people of Georgia.’ “

Georgia promised a minimum flow of water at the state line to protect Florida’s endangered mussels and sturgeon during droughts. But fast-growing metro Atlanta, bolstered by then-Gov. Sonny Perdue, refused to cap how much water it might need in the future. Perdue also protected southwest Georgia cotton and peanut farmers who kept digging wells to irrigate evermore acres of crops — another slap at Florida negotiators.

The Sunshine State bears responsibility for the compact’s demise, too. Perdue accused Florida of repeatedly ratcheting up water flow and consumption demands. And Struhs, in a March 2002 letter to fellow negotiators, wrote that Florida backed away from a deal because it was going to intervene in Georgia’s lawsuit against the corps. Struhs believed Florida would be better served going the litigation route.

Harold Reheis, a former director of Georgia’s environmental agency, testified this week that negotiations invariably required a “straw man,” or bargaining chip, proposal and that Georgia expected the compact negotiations to continue past the August 2003 deadline.

“Georgia never operated in bad faith on the compact negotiations at any time,” Reheis said on the stand. “None of Georgia’s actions resulted in the compact dissolving. The compact dissolved because Florida walked away from it.”

A compact compromise

The Supreme Court has tapped Lancaster on three previous occasions to handle water disputes between states. Each of the cases was governed by compacts already in place.

In 2001, for example, Lancaster cited a 1785 compact as evidence that Virginia “unambiguously” had rights to use the Potomac River — even though Maryland legally owned the river.

The special master, prior to this trial, repeatedly warned Florida and Georgia negotiators to resolve the dispute because neither side would be satisfied with his decision. Court watchers last week interpreted Lancaster’s questions about the ACF compact as a harbinger of his ruling.

Kevin Jeselnik, a staff attorney with the Chattahoochee Riverkeeper who attended the trial, said “a compromise between the states that advances water-saving measures across the basin” would be the preferred outcome.

The ACF Stakeholders, a grass-roots organization of scientists, utility managers, riverkeepers and others from Atlanta to Apalachicola, called for a Transboundary Water Management Institute to equitably manage water flows.

The institute would serve as something of a compact, requiring the three states and the corps to monitor river flows and aquifer levels daily to ensure enough water for Atlanta lawn-lovers and Apalachicola oysters. During droughts, it could order higher flows to save Florida’s mussels and sturgeon. During wet years, it could demand more water be stored in Lanier and other reservoirs as literal rainy-day funds.

“We have to think differently,” Sherk said. “We need to know what’s going on, both in quantity and quality, at all times in three river basins to make allocation decisions. There is so much uncertainty.”

And roadblocks. The stakeholder’s plan is on ice; water war negotiators didn’t want it interfering with their cases. Georgia, in particular, feels it has the upper hand legally. And Congress — not the judicial branch or any special master — under the commerce clause of the U.S. Constitution regulates interstate water flows.

In addition, no final deal can be reached without the corps. Other federal agencies, including the Environmental Protection Agency and the Fish and Wildlife Service, are intricately involved in water war issues, too. And Alabama, which is not a party to this lawsuit, could take up legal action in the future.

Compact or not, the water wars aren’t likely to end any time soon.

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